City of Indianapolis v. Barthel

• Decision Date: 15 November 1923
• Docket Number: 23,801
• Citation: 141 N.E. 339,194 Ind. 273
• Parties: City of Indianapolis v. Barthel, Administrator
• Court: Indiana Supreme Court

141 N.E. 339

194 Ind. 273

City of Indianapolis v. Barthel, Administrator

No. 23,801

Supreme Court of Indiana

November 15, 1923

Rehearing Denied February 8, 1924, Reported at: 194 Ind. 273 at 278.

From Bartholomew Circuit Court; John W. Donaker, Judge.

Action by Alfred Barthel, as administrator, against the City of Indianapolis. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Samuel Ashby, Thomas D. Stevenson, Harry E. Yockey, Dixon H. Bynum Rynerson & Long, for appellant.

Kollmeyer & Sharpneck and William E. Reiley, for appellee.

OPINION

Ewbank, J.

This was an action for damages for negligently causing the death of Mabel Barthel, whose husband sued as administrator of her estate. The alleged negligence consisted of permitting the surface of Madison avenue for some distance south of an iron pole standing therein, at the intersection of Palmer street north of the J. M. and I. Railroad tracks, in the city of Indianapolis to be and remain in a defective condition, by reason of being filled with holes, bumps and projections. And the complaint alleged that while plaintiff's decedent was riding as a passenger in an automobile in said street, these defects diverted the wheels from their course, and caused the automobile to run against said iron pole, and that plaintiff's decedent was thereby so injured that she died. The notice served on the city within sixty days, pursuant to the provisions of the statute (§ 8962 Burns 1914, Acts 1907 p. 249), recited that the pole was in the center of the street, that the entire east side of the street was defective, that the automobile while being driven north was driven "into the center of the street near the west car tracks to avoid the rough places", that the front wheels struck the holes and projections in the surface of the street and they threw the automobile "out of its path to the left and the hub of the left front wheel of said automobile collided with said iron pole", and caused the injury. The complaint alleged that the automobile was being driven between "the east car tracks", when the wheels struck the defective surface of the street and "violently diverted the course of the machine to the northwest", and caused the hub of the left front wheel to strike the pole, and the evidence tended to prove that this was the way the injury was caused. Counsel for appellant insist that there was a variance between the statement in the notice and the facts proved, and assert that an automobile driven "near the west car tracks" would necessarily be on the west side of the street. Waiving the question whether the statutory requirement of "a brief general description of the time, place, cause and nature of the injury" would call for a statement of the precise spot on the street where the wheels struck the alleged defects, we do not think there was any variance. The notice stated only that the automobile was driven "near the west tracks", and alleged that the defects in the street threw it "to the left", and that the hub of the "left front wheel" was thereby thrown against the pole in the center of the street. These facts clearly showed that the automobile running north was east of the center of the street until diverted to the left by the defects in the street, and could not mislead appellant into believing that in driving "near the west track" the automobile was on the west side of the street at the time of the injury.

Appellant complains of the giving of certain instructions and the refusal to give certain others. But there is no bill of exceptions reciting what...